DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JOHN WESLEY KOGEL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-2093
[June 8, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott R. Kerner, Judge; L.T. Case No.
502021MH002001XXXXSB.
Carey Haughwout, Public Defender, and Narine N. Austin, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jacqueline I.
Kurland, Senior Assistant Attorney General, Fort Lauderdale, for appellee.
KUNTZ, J.
John Kogel appeals the circuit court’s order granting a petition for
involuntary inpatient placement. Under section 394.467, Florida Statutes
(2020), also known as the Baker Act, the State must present clear and
convincing evidence of the statutory criteria before a person may be
involuntarily placed for treatment. In this case, we conclude that the State
failed to do so. So, we reverse.
The criteria for involuntary placement under the Baker Act is found in
the statute:
(1) Criteria.--A person may be ordered for involuntary
inpatient placement for treatment upon a finding of the court
by clear and convincing evidence that:
(a) He or she has a mental illness and because of his or her
mental illness:
1. a. He or she has refused voluntary inpatient placement for
treatment after sufficient and conscientious explanation and
disclosure of the purpose of inpatient placement for
treatment; or
b. He or she is unable to determine for himself or herself
whether inpatient placement is necessary; and
2. a. He or she is incapable of surviving alone or with the help
of willing and responsible family or friends, including available
alternative services, and, without treatment, is likely to suffer
from neglect or refuse to care for himself or herself, and such
neglect or refusal poses a real and present threat of
substantial harm to his or her well-being; or
b. There is substantial likelihood that in the near future he
or she will inflict serious bodily harm on self or others, as
evidenced by recent behavior causing, attempting, or
threatening such harm; and
(b) All available less restrictive treatment alternatives that
would offer an opportunity for improvement of his or her
condition have been judged to be inappropriate.
§ 394.467(1)(a)-(b), Fla. Stat. (2020).
Kogel’s challenge in this appeal is limited to section 394.467(1)(a)2.a.
He argues the State did not establish that without treatment he was likely
to suffer from neglect or refusal to care for himself, threatening substantial
harm to his well-being. We agree.
At the evidentiary hearing, the State presented the testimony of a doctor
that treated Kogel. The doctor testified that Kogel had a mental illness,
was “chronically ill,” and “started acting strangely and bizarrely” at the
outpatient clinic. 1
Additionally, the doctor testified that Kogel was likely to harm himself
or others without treatment. But to support this conclusion, the doctor
merely relied on the purported fear of Kogel’s mother. The doctor testified:
“I can only go with what . . . his mom’s concerns are . . . that she did not
feel safe. She didn’t have any specific reasons, but she felt he needed to
1We describe the testimony about Kogel’s mental illness with specificity only
where relevant.
2
be in treatment acutely because . . . she feared for her safety basically.”
This speculative belief cannot establish that Kogel was likely to harm
himself or others. See, e.g., Henson v. State,
801 So. 2d 316, 317 (Fla. 1st
DCA 2001); see also Blue v. State,
764 So. 2d 697, 698 (Fla. 1st DCA 2000).
We recently explained:
“[T]here must also be clear and convincing evidence that
without treatment, the patient would pose a real and present
threat of substantial harm to herself, or a substantial
likelihood that in the near future she will inflict serious bodily
harm on herself or another, as evidenced by recent behavior.”
Boller v. State,
775 So. 2d 408, 409 (Fla. 1st DCA 2000) (citing
§ 394.467(1)(a) 2., Fla. Stat. (1999); Adams v. State, 713 So.
2wd 1063, 1063 (Fla. 1st DCA 1998)). “Importantly,
‘[c]onclusory testimony, unsubstantiated by facts in evidence
... is insufficient to satisfy the statutory criteria by the clear
and convincing evidence standard.’” J.B. v. State,
307 So. 3d
986, 988 (Fla. 5th DCA 2020) (quoting Boller,
775 So. 2d at
410).
Bess v. State,
336 So. 3d 36, 37-38 (Fla. 4th DCA 2022).
The doctor’s testimony was speculative and conclusory. As a result, we
reverse the circuit court’s order granting a petition for involuntary
inpatient placement.
Reversed.
CONNER, C.J., and GERBER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3
